Citation Nr: 0525841
Decision Date: 09/21/05 Archive Date: 09/29/05
DOCKET NO. 04-10 621 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to an initial rating in excess of 10 percent
for diabetes mellitus
type II.
2. Entitlement to an evaluation in excess of 30 percent for
post-traumatic stress disorder (PTSD).
ATTORNEY FOR THE BOARD
K. Fitch, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1970 to
February 1972, including combat service in the Republic of
Vietnam. His decorations include the Combat Infantryman
Badge.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina that granted service connection for
the veteran's diabetes mellitus, assigning an initial
evaluation of 10 percent under Diagnostic Code 7913 effective
March 14, 2003, and continued the veteran's 30 percent
evaluation for his service-connected PTSD. The veteran
perfected a timely appeal of these determinations to the
Board.
As the appeal regarding the evaluation of the veteran's
service-connected diabetes mellitus involves an original
claim, the Board has framed this issue as shown on the title
page. See Fenderson v. West, 12 Vet. App. 119 (1999).
FINDINGS OF FACT
1. The medical evidence shows that the veteran's diabetes
mellitus has been manifested by restricted diet and oral
hypoglycemic agent; however, the medical evidence shows that
the veteran's diabetes mellitus has not been manifested by
required insulin or regulation of activities.
2. The evidence of record indicates that the veteran's PTSD
is productive of flashbacks, nightmares, insomnia,
irritability, intrusive thoughts, avoidance and isolation,
and some occupational and social impairment; the veteran,
however, is able to function in the work force, and is able
to perform routine behavior, self-care, and normal
conversation, with normal range of emotions and average
intellectual ability and judgment.
3. The veteran's PTSD, while manifested by some occupational
and social impairment, and some disturbances of motivation
and mood, is not productive of flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more frequently than once a week; difficulty in
understanding complex commands; impairment of short- and
long-term memory (e.g., retention of only highly learned
material, forgetting to complete tasks); impaired judgment;
impaired abstract thinking; and difficulty in establishing
and maintaining effective work and social relationships.
CONCLUSIONS OF LAW
1. The criteria for the assignment of an initial rating of
20 percent for diabetes mellitus have been met. 38 U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.119,
Diagnostic Code 7913 (2004).
2. The criteria for the assignment of an evaluation for PTSD
in excess of 30 percent have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3,
4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. VCAA
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at
38 C.F.R. § 3.159, amended VA's duties to notify and to
assist a claimant in developing the information and evidence
necessary to substantiate a claim.
Under 38 U.S.C.A. § 5103, VA must notify the claimant of the
information and evidence not of record that is necessary to
substantiate the claim, which information and evidence that
VA will seek to provide and which information and evidence
the claimant is expected to provide. Furthermore, in
compliance with 38 C.F.R. § 3.159(b), the notification should
include the request that the claimant provide any evidence in
the claimant's possession that pertains to the claim.
In the present case, the RO, in letters dated in June 2001
and April 2003, provided the veteran with notice of the types
of evidence needed in order to substantiate a claim of
entitlement to service connection. 38 U.S.C.A. § 5103 and
38 C.F.R. § 3.159(b). Specifically, the veteran was informed
of his responsibility to identify, or submit directly to VA,
medical evidence that shows that the veteran has a current
injury or disease that began in service or is related
thereto. The veteran was told that this evidence may consist
of medical records or medical opinions. In addition, the
veteran was informed that he needed to provide evidence
showing that his PTSD and diabetes mellitus existed from
military service to the present time. The veteran was also
invited to submit evidence to VA to help substantiate his
appeal, including evidence in the veteran's possession.
In addition, the Board notes that, because service connection
has since been established, 38 U.S.C. § 5103(a) does not
require VA to provide notice of the information and evidence
necessary to substantiate the veteran's claim of entitlement
to a higher initial evaluation for his condition. VAOPGCPREC
8-2003 (2003). And a review of the record makes clear that
the veteran was informed of the requirements of the VCAA in
other letters and documents forwarded to the veteran in
connection with his claims, including, the July 2003 rating
decision and the March 2004 Statement of the Case. See
Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In addition,
the statements and evidence submitted by the veteran indicate
that he was aware that he needed to submit evidence that his
conditions had worsened. To decide the appeal on these facts
would not be prejudicial error to the veteran.
By way of a July 2003 rating decision, and a March 2004
Statement of the Case, the veteran was advised of the basic
law and regulations governing his claims, and the basis for
the decisions regarding his claims. These documents, along
with additional letters forwarded to the veteran by the RO,
also specifically informed the veteran of the cumulative
information and evidence previously provided to VA, or
obtained by VA on the veteran's behalf.
For the reasons above the Board finds that the RO
substantially complied with the specific requirements of
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying
evidence to substantiate the claim and the relative duties of
VA and the claimant to obtain evidence); Charles v. Principi,
16 Vet. App. 370 (2002) (identifying the document that
satisfies the VCAA notice); and 38 C.F.R. § 3.159(b) (the
content of the notice requirement, pertaining to the evidence
in the claimant's possession or a similar request to that
effect). In this context, it is well to observe that the
VCAA requires only that the duty to notify be satisfied, and
that claimants be given the opportunity to submit information
and evidence in support of their claims. Once this has been
accomplished, all due process concerns have been satisfied.
See Bernard v. Brown, 4 Vet. App. 384 (1993). Sutton v.
Brown, 9 Vet. App. 553 (1996).
The Board also finds that VA has made reasonable efforts to
assist the veteran in obtaining evidence necessary to
substantiate his claims. 38 U.S.C.A. § 5103A (West 2002).
In particular, the information and evidence associated with
the claims file consists of the veteran's service medical
records, post-service medical evidence, including private and
VA medical records, several VA examination reports, and
statements submitted by the veteran in support of the claims.
Under the circumstances of this case, the Board finds that VA
undertook reasonable development with respect to the
veteran's claim.
Based on the foregoing, the Board concludes that there is no
identified evidence that has not been accounted for with
respect to the veteran's claim. Moreover, the veteran's
representative has been given the opportunity to submit
written argument. Therefore, under the circumstances of this
case, VA has satisfied its duty to assist the veteran in this
case. Accordingly, further development and further expending
of VA's resources is not warranted. See 38 U.S.C.A. § 5103A.
II. Entitlement to an initial disability rating in excess
of 10 percent for
diabetes mellitus.
Disability evaluations are determined by comparing a
veteran's present symptomatology with criteria set forth in
the VA's Schedule for Rating Disabilities, which is based on
average impairment in earning capacity. See 38 U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. Part 4 (2003). When a question
arises as to which of two ratings apply under a particular
diagnostic code, the higher evaluation is assigned if the
disability more nearly approximates the criteria for the
higher rating; otherwise, the lower rating will be assigned.
See 38 C.F.R. § 4.7 (2003). After careful consideration of
the evidence, any reasonable doubt remaining is resolved in
favor of the veteran. See 38 C.F.R. § 4.3 (2003). The
veteran's entire history is reviewed when making disability
evaluations. See 38 C.F.R. 4.1 (2003); Schafrath v.
Derwinski, 1 Vet. App. 589, 592 (1995). However, where, as
here, the question for consideration is the propriety of the
initial evaluation assigned after the grant of service
connection, evaluation of the medical evidence since the
effective date of the grant of service connection and
consideration of the appropriateness of "staged ratings" is
required. See Fenderson v. Brown, 12 Vet. App. at 126.
The veteran's diabetes mellitus is currently evaluated as 10
percent disabling pursuant to Diagnostic Code 7913. Under
these criteria, a 10 percent evaluation is warranted where
the veteran's condition is manageable by restricted diet
only. A 20 percent evaluation is warranted where the
condition requires insulin and restricted diet, or oral
hypoglycemic agent and restricted diet. A 40 percent
evaluation requires insulin, a restricted diet, and
regulation of activities. A 60 percent under this code
requires insulin, a restricted diet, and regulation of
activities, with episodes of ketoacidosis or hypoglycemic
reactions requiring one or two hospitalizations per year or
twice a month visits to a diabetic care provider, plus
complications that would not be compensable if separately
evaluated. A maximum rating of 100 percent is warranted when
the disability requires more than one daily injection of
insulin, a restricted diet, and regulation of activities
(avoidance of strenuous occupational and recreational
activities) with episodes of ketoacidosis or hypoglycemic
reactions requiring at least three hospitalizations per year
or weekly visits to a diabetic care provider, plus either
progressive loss of weight and strength or complications that
would be compensable if separately evaluated. In addition, a
note following the rating criteria indicates that compensable
complications from diabetes mellitus are evaluated separately
unless they are part of the criteria used to support a 100
percent evaluation. However, noncompensable complications
are considered part of the diabetic process under Diagnostic
Code 7913.
After a careful review of the record, the Board finds that
the evidence of record supports an evaluation of 20 percent
for the veteran's service-connected diabetes mellitus under
Diagnostic Code 7913.
In March 2001, the veteran was afforded a VA examination in
connection with his claim. The examiner diagnosed the
veteran with borderline diabetes mellitus and noted that the
veteran sought to control this condition with exercise and
restricted diet. The veteran had no restrictions on his
activities at the time. The veteran was also noted not to be
under any treatment for diabetes mellitus at the time.
VA medical records related to this condition note a diagnosis
of diabetes mellitus type II in May and July 2003. These
reports are accompanied by notes indicating that the veteran
would try to control this condition through dietary means.
In January 2004, the veteran was again afforded a VA
examination in connection with his diabetes mellitus. The
veteran was noted to have no history of hospitalizations for
ketoacidosis or hypoglycemia. He was on a low-concentrated
sweet, low-carbohydrate diet, with no restriction of
activity. The veteran was also noted to be taking
Glucophage, an oral anti-hypoglycemic drug used in the
treatment of diabetes mellitus type II, in the amount of 500
mg twice a day. The examiner noted that the veteran sees a
diabetic care provider every two to three months. The
veteran was diagnosed with diabetes, under excellent control
with no evidence of end organ damage at the time.
In this case, the Board finds that the veteran's diabetes
mellitus warrants a 20 percent evaluation under Diagnostic
Code 7913. The medical evidence shows that the veteran's
diabetes mellitus is manifested by restricted diet and oral
hypoglycemic agent. His condition, however, does not require
insulin or restriction of activities. In this case, the
veteran's condition most nearly approximates the criteria for
a 20 percent evaluation under Diagnostic Code 7913, but no
more.
As this issue deals with the rating assigned following the
original claim for service connection, consideration has been
given to the question of whether "staged rating," as
addressed by the Court in Fenderson, would be in order. The
Board finds that the 20 percent evaluation reflects the
highest degree of impairment shown since March 14, 2003, the
effective date of the grant of service connection. As such,
the 20 percent evaluation should be effective since that
time. Therefore, there is no basis for staged rating in the
present case.
The above decision is based on application of pertinent
provisions of the VA's Schedule for Rating Disabilities.
Additionally, the record does not establish that the
schedular criteria are inadequate to evaluate the disability,
so as to warrant referral to the RO for consideration of an
assignment of a higher evaluation on an extra-schedular
basis. In this regard, the Board notes that there is no
showing that the disability under consideration has resulted
in marked interference with employment (i.e., beyond that
contemplated in the assigned evaluation) for any period since
service connection was established. In addition, there is no
showing during this period that the veteran's disability has
necessitated frequent periods of hospitalization, or that the
disability has otherwise rendered impractical the application
of the regular schedular standards. In the absence of such
factors, the Board finds that the criteria for submission for
assignment of assignment of an extra-schedular rating
pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell
v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet.
App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227
(1995).
III. Entitlement to an initial evaluation in excess of 30
percent for
post-traumatic stress disorder (PTSD).
The veteran next contends that he should receive an
evaluation in excess of 30 percent for his service-connected
PTSD.
As noted before, disability evaluations are determined by
comparing a veteran's current symptomatology with criteria
set forth in the VA's Schedule for Rating Disabilities, which
is based on average impairment in earning capacity. See
38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises
as to which of two ratings apply under a particular
diagnostic code, the higher evaluation is assigned if the
disability more nearly approximates the criteria for the
higher rating; otherwise, the lower rating will be assigned.
See 38 C.F.R. § 4.7. After careful consideration of the
evidence, any reasonable doubt remaining is resolved in favor
of the veteran. See 38 C.F.R. § 4.3. The veteran's entire
history is reviewed when making disability evaluations. See
38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594
(1991).
In this case, the veteran's PTSD is currently rated as 30
percent disabling under Diagnostic Code 9411. Under this
code, a 30 percent evaluation is warranted where there is
occupational and social impairment with occasional decrease
in work efficiency and intermittent periods of inability to
perform occupational tasks (although generally functioning
satisfactorily, with routine behavior, self-care, and
conversation normal) due to such symptoms as: depressed
mood, anxiety, suspiciousness, panic attacks (weekly or less
often). chronic sleep impairment, and mild memory loss (such
as forgetting names, directions, recent events).
A 50 percent evaluation is warranted for PTSD when the
disorder causes occupational and social impairment, with
reduced reliability and productivity, due to such symptoms as
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more frequently than once a
week; difficulty in understanding complex commands;
impairment of short- and long-term memory (e.g., retention of
only highly learned material, forgetting to complete tasks);
impaired judgment; impaired abstract thinking; disturbances
of motivation and mood; and difficulty in establishing and
maintaining effective work and social relationships.
A 70 evaluation for PTSD requires occupational and social
impairment, with deficiencies in most areas, such as work,
school, family relations, judgment, thinking, or mood, due to
such symptoms as: suicidal ideation; obsessional rituals
which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a work like
setting); and an inability to establish and maintain
effective relationships.
Finally, a 100 percent evaluation is warranted when the
condition is productive of total occupational and social
impairment, due to such symptoms as: gross impairment in
thought processes or communication; persistent delusions or
hallucinations; grossly inappropriate behavior; persistent
danger of hurting self or others; intermittent inability to
perform activities of daily living (including maintenance of
minimal personal hygiene); disorientation to time or place;
and memory loss for names of close relatives, own occupation,
or own name.
In addition, in Mittleider v. West, 11 Vet. App. 181 (1998),
the Court held that VA regulations require that, unless the
symptoms and/or degree of impairment due to a veteran's
service-connected psychiatric disability, here PTSD, can be
distinguished from any other diagnosed psychiatric disorders,
e.g., major depression and alcohol dependence, VA must
consider all psychiatric symptoms in the adjudication of the
claim.
After a careful review of the record, the Board finds that
the veteran's PTSD does not warrant an evaluation in excess
of 30 percent. In reaching this determination, the Board
notes that the veteran was afforded several VA examinations
in connection with his PTSD, and he has been seen at VA on
numerous occasions for this condition as well.
The results of the November 2000 examination revealed that
the veteran noted difficulty sleeping and dreams about
Vietnam three to four times per week. The veteran also
reported flashbacks and intrusive thoughts about Vietnam two
to three times per week. The veteran was easily irritated
and had problems with his temper. The veteran stated that he
has some problems with memory and described himself as a
loner that frequently isolated himself. He was noted to be
living with his wife (although he noted that he isolated
himself from her at times) and reported a good relationship
with his children. He stated that he is able to express his
feelings without difficulty. The veteran also reported that
he is bothered by loud noises and that has an exaggerated
startle response. Upon examination, the veteran was reported
to be alert, oriented and cooperative. There was no evidence
of psychomotor retardation and he made good eye contact. The
veteran's speech was normal and he was neatly dressed and
groomed. His affect was broad range and appropriate to the
conversation and his thought processes were logical and goal
directed without evidence of lucence associations. The
veteran denied hallucinations and delusions. His judgement
to a hypothetical situation was intact and he denied suicidal
and homicidal ideation, although he did note that he was
often homicidal and angry. After the examination, the
veteran was diagnosed with PTSD and given a GAF score of 67.
The examiner noted that the veteran's level of disability at
that point was in the mild range.
In April 2003, the veteran as again seen by VA in connection
with his claim. In this examination the veteran reported
nightmares and trouble with sleep. The veteran was noted to
be living with his wife and son. He was also noted to be
employed. Upon examination, the veteran was not in emotional
distress, and his appearance was normal and appropriate for
the situation. His eye contact was good. He noted some
problems with memory at work, but was able to perform short
term memory tests adequately. He, however, incorrectly
performed a simple mental calculation and incorrectly spelled
a word backwards. His judgement to a hypothetical was poor.
The veteran described his mood as depressed, and his affect
was blunted. The veteran noted suicidal and homicidal
thoughts in the past. He denied hallucinations. The veteran
also reported nightmares two or three times per week about
Vietnam, which have affected his relationship with his wife.
He also reported intrusive thoughts, hypervigilance and an
exaggerated startle response. The veteran was diagnosed with
PTSD and given a GAF score of 64. The examiner noted that
the veteran's social adaptations were moderately impaired,
and the veteran was noted to have stress-related avoidance
and irritability. The examiner found the veteran's condition
to be in the mild to moderate range.
The veteran was also treated at VA on several occasions for
his PTSD. In October 2003, the veteran was seen for this
PTSD. The veteran appeared relaxed and stated that he was
working part-time and looking for a better job. He stated
that he was not sleeping well and had hobbies, which helped.
He did not want to pursue memories of Vietnam. The physician
noted that the veteran's mood was relaxed, but that his
affect was blunted. His thoughts were linear and his speech
and motor activity were normal. He reported no suicidal or
homicidal ideations, and no hallucinations or delusions. His
nightmares were noted to have decreased to one per week. The
veteran was diagnosed with PTSD and assigned a GAF score of
70. In a September 2003 appointment, the veteran was noted
to have similar symptoms, but appeared to be depressed and
noted problems in his marraige. He was assigned a GAF score
of 60.
Finally, the veteran was again examined by VA in January
2004. The veteran was reported to be employed and stated
that his job was going fairly well, but that he gets
irritated with management sometimes. The veteran was also
noted to be living with his son, and reported conflict with
his wife. The veteran stated that he got along with his
adult daughter, but that he was not particularly close to her
or anyone else. He denied having close or casual friends and
was noted to keep busy restoring a jeep, fishing in the
summer and attending church two to three times per month.
Upon examination, the veteran was alert, oriented and
attentive. His mood was dysphoric and his affect was
constricted. The veteran's eye contact was good and he was
pleasant and cooperative with the examiner. No
hallucinations or delusions were noted and the veteran denied
homicidal and suicidal ideation. His short term memory was
intact, but his thought process was circumstantial and slow
to process information. The veteran was diagnosed with PTSD
and given a GAF score of 55. The examiner found the
veteran's symptoms to be in the moderate range. In this
regard, the examiner noted feelings of guilt, nightmares,
emotional detachment, sleep problems, exaggerated startle
response, some irritability and concentration problems. His
social adaptability appears moderately to considerably
impaired.
With respect to the GAF scores noted in the various
examinations of the veteran, the Board notes that a GAF score
of 41 to 50, indicates serious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting)
or any serious impairment in social occupational, or school
functioning (e.g., no friends, unable to keep a job). A GAF
score of 51 to 60, indicates moderate symptoms (e.g., flat
affect and circumstantial speech, occasional panic attacks)
or moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-
workers). And a GAF score of 61 to 70 indicates some mild
symptoms (e.g., depressed mood and mild insomnia) or some
difficulty in social occupational, or school functioning
(e.g., occasional truancy, or theft within the household) but
generally functioning pretty well, has some meaningful
interpersonal relationships.
Based on the foregoing, the Board finds that entitlement to
an evaluation in excess of 30 percent under Diagnostic Code
9411 has not been shown. The evidence of record indicates
that the veteran suffers only mild to moderate occupational
and social impairment with relatively little interference
with work and job performance over the years since service
due to his PTSD symptoms. He has been able to function in
the work force, albeit with some irritability noted toward
managers. The veteran was also noted to perform routine
behavior, self-care, and normal conversation. The veteran's
symptoms indicate some depressed mood, exaggerated startle
response, chronic sleep impairment, nightmares, flashbacks,
emotional detachment and some isolation, as well as some
irritability and concentration problems. His symptoms have
been described as mild to moderate.
A 50 percent evaluation, however, is not warranted for the
veteran's PTSD. The veteran's condition, while showing some
occupational and social impairment, and some disturbances of
motivation and mood, did not evidence such symptoms as
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more frequently than once a
week; difficulty in understanding complex commands;
impairment of short- and long-term memory (e.g., retention of
only highly learned material, forgetting to complete tasks);
impaired judgment; impaired abstract thinking; and difficulty
in establishing and maintaining effective work and social
relationships. This last factor is notable in that the
veteran, while suffering some depression, maintained a
(albeit strained) relationship with his wife, and
relationships with his children. He also engages in hobbies
and attends church on a regular basis. And he has maintained
regular employment without much difficulty.
Based on the foregoing, the Board finds that the veteran's
PTSD does not warrant an evaluation in excess of 30 percent.
The above determination is based on application of pertinent
provisions of the VA's Schedule for Rating Disabilities.
There is no showing that the veteran's psychiatric disability
reflects so exceptional or unusual a disability picture as to
warrant the assignment of an evaluation higher than 30
percent on an extra-schedular basis. See 38 C.F.R.
§ 3.321(b)(1) (2002). There is no indication that the
disability results in marked interference with employment
(i.e., beyond that contemplated in the assigned evaluation)
for any period since the grant of service connection.
Moreover, the condition is not shown to warrant frequent
periods of hospitalization, or to otherwise render
impractical the application of the regular schedular
standards. In the absence of evidence of such factors, the
Board is not required to remand the claim to the RO for the
procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See
Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v.
Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet.
App. 218, 227 (1995).
ORDER
1. Subject to the laws and regulations governing payment of
monetary benefits, an initial 20 percent schedular rating for
diabetes mellitus, from March 14, 2003, is granted.
2. Entitlement to an evaluation in excess of 30 percent for
PTSD is denied.
____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs